OML AO 5584

FROM:            Robert J. Freeman, Executive Director
CC:                Donald A. James, Superintendent, Commack UFSD (
RE:                 Advisory Opinion

The staff of the Committee on Open Government is authorized to issue advisory opinions.  The ensuing staff advisory opinion is based solely upon the information presented in your correspondence, except as otherwise indicated.

The ensuing comments are intended to offer guidance concerning the ability of a public body, such as a board of education, to meet in private, without the presence of a particular member of that body.  As suggested previously, there are potentially two vehicles that permit a board to engage in a private discussion. 

Most common is the executive session, and the phrase “executive session” is defined in §102(3) of the Open Meetings Law (OML) to mean a portion of an open meeting during which the public may be excluded.  It is not separate from a meeting, but rather is a part of an open meeting.  Prior to conducting an executive session, §105(1) of the OML requires that a procedure be accomplished in public.  First, a motion to enter into executive session must be made.  Second, the motion must indicate the subject or subjects sought to be considered.  And third, the motion must be approved by a majority of the total membership of the board, notwithstanding absences, vacancies or incapacity.  From there, the issue is whether there is a basis for conducting an executive session.   There are eight grounds for conducting an executive session listed in §105(1)(a) through (h), and the question relative to an effort to hold an executive session is whether the subject under consideration falls within any of those exceptions to openness.

Section §105(1)(d) of the OML permits a public body to enter into an executive session to discuss "proposed, pending or current litigation". In construing the language quoted above, it has been held that:

“The purpose of paragraph d is to enable is to enable a public body to discuss pending litigation privately, without baring its strategy to its adversary through mandatory public meetings' (Matter of Concerned Citizens to Review Jefferson Val. Mall v. Town Bd. Of Town of Yorktown, 83 AD 2d 612, 613, 441 NYS 2d 292). The belief of the town's attorney that a decision adverse to petitioner 'would almost certainly lead to litigation' does not justify the conducting of this public business in an executive session. To accept this argument would be to accept the view that any public body could bar the public from its meetings simply be expressing the fear that litigation may result from actions taken therein. Such a view would be contrary to both the letter and the spirit of the exception" [Weatherwax v. Town of Stony Point, 97 AD 2d 840, 841 (1983)].

Based upon the passage quoted above, I believe that the exception is intended to permit a public body to discuss its litigation strategy behind closed doors.

As noted in previous correspondence and conversations, the only persons who have a right to attend an executive session are the members of the public body holding the executive session.  Section 105(2) of the OML states clearly and directly: “Attendance at an executive session shall be permitted to any member of the public body and any other persons authorized by the public body.”  That provision gives you, a member of a board of education, the right to attend an executive session held by the board.

The second vehicle appears in §108 of the OML, which contains three "exemptions".   If an exemption is applicable, the OML is not; it is as if the OML does not exist.

Relevant in some circumstances is §108(3) concerning matters made confidential by law. When a board seeks legal advice from its attorney, an attorney-client relationship is invoked and the communications made pursuant to that relationship are considered confidential under §4503 of the Civil Practice Law and Rules. Consequently, if an attorney and a client establish a privileged relationship, the communications made pursuant to that relationship would in my view be confidential under state law and, therefore, exempt from the OML.

Further, it has been advised that when a member of a public body is a litigant or potential litigant who has initiated or may initiate a lawsuit against the public body, or who may be the target of litigation initiated by that body, the other members of the public body may engage in attorney- client communications in private, and outside the coverage of the OML. While a member of a public body has the right to attend an executive session, in the context of the situation described in the preceding sentence, I do not believe that that person, as a litigant or potential litigant, would enjoy the same right to attend a gathering of the other members with their attorney during which the communications are subject to the attorney-client privilege.

When a member of a public body has sued, is likely to sue that body, or may be the target of litigation initiated by that body and is its legal adversary, I believe he or she could validly be excluded from a gathering between the other members and their attorney in which the attorney-client privilege is properly invoked. The member-adversary in that instance would not be the client, and that person's exclusion would, in my view, be consistent with the thrust of case law concerning the intent of §105(1)(d) and consideration of litigation strategy. In that situation, the gathering would be exempted from the OML insofar as the attorney-client privilege applies. However, if a member of a public body is not an adversarial or potentially adversarial party in litigation (but perhaps a dissenter or person with a minority view), I believe that he or she would have the right under §105(2) of the Open Meetings Law to attend an executive session.

In sum, and I do not intend to be overly technical, there are distinctions between executive sessions and exemptions from the OML.  Again, an executive session can be held only as part of an open meeting, and the grounds for entry into executive session are specified and limited.   It is reiterated that any member of a board may attend an executive session of the board.  In contrast, when an exemption applies, the OML does not.  There is no obligation to provide a reason for excluding the public when an exemption applies.  Further, when a matter is exempt from the OML, I know of no obligation to inform all members of the board that a gathering may occur, nor do I believe that there is a right on the part of every  member  of the board to attend such a gathering.

I hope that I have been of assistance and that the foregoing serves to clarify your understanding.